Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

GV v. Board of Education of West Genesee Central School District

United States District Court, N.D. New York

July 25, 2017

GV, individually and as parent and natural guardian of CV, an infant under the age of 18, Plaintiff,
v.
BOARD OF EDUCATION OF THE WEST GENESEE CENTRAL SCHOOL DISTRICT et al., Defendants.

          FOR THE PLAINTIFF: Getnick, Livingston Law Firm.

          FOR THE DEFENDANTS: Board of Education of the West Genesee Central School District, Onondaga-Cortland-Madison Counties Board of Cooperative Educational Services.

          OF COUNSEL: PATRICK G. RADEL, ESQ. ELIZABETH A. HOFFMAN, ESQ. CHRISTOPHER M. MILITELLO, ESQ. FRANK W. MILLER, ESQ.

          MEMORANDUM-DECISION AND ORDER

          GARY L. SHARPE, SENIOR DISTRICT JUDGE

         I. Introduction

         Plaintiff GV, on behalf of himself and his minor son, CV, commenced this action against defendants Board of Education of the West Genesee Central School District (District) and Onondaga-Cortland-Madison Counties Board of Cooperative Educational Services (BOCES) pursuant to Section 504 of the Rehabilitation Act of 1973[1] (Section 504) and Title II of the Americans with Disabilities Act[2] (ADA). (Compl., Dkt. No. 1.) Pending is BOCES' motion for judgment on the pleadings, (Dkt. No. 29), which seeks to dismiss the complaint and a cross-claim filed by the District, (Dkt. No. 17 at 10). Also pending is the District's motion for judgment on the pleadings, (Dkt. No. 32), which seeks to dismiss the complaint and a cross-claim filed by BOCES, (Dkt. No. 20 at 8).

         II. Background

         A. Facts[3]

         1. 2012-13 School Year

         GV is the parent and natural guardian of CV, “an infant under the age of 18”[4] with Down syndrome and attention deficit hyperactivity disorder. (Compl. ¶ 3; Id., Attach. 1 at 4.) During the 2012-13 school year, per the recommendation of the District's Committee on Special Education (CSE), CV attended a program, known as the TEAM class, located at Split Rock Elementary School, one of the District's elementary schools. (Compl. ¶ 10.) The TEAM class was “operated” by BOCES and “jointly staffed and supervised” by the District and BOCES. (Id. ¶¶ 10-11.)

         Shortly after the start of the 2012-13 school year, CV “demonstrated challenging behaviors, ” including “aggressive behaviors.” (Id. ¶ 12.) In response, the District and BOCES “repeatedly subjected CV to violent physical restraints and seclusion.” (Id. ¶ 13.) District and BOCES employees “frequently used a therapy mat to pin CV against a wall” and “left CV alone in the classroom while holding the door closed from the outside to prevent his frantic efforts to escape.” (Id. ¶¶ 16-17.) CV was physically restrained seven times in October 2012; during that month, CV was subjected to physical restraints involving multiple adults for at least forty-nine minutes. (Id. ¶¶ 14-15.)

         2. Impartial Hearing Officer's Decision

         On July 10, 2013, GV commenced a due process proceeding pursuant to 20 U.S.C. § 1416, Section 504, the ADA, Article 89 of New York Education Law, and N.Y. Comp. Codes R. & Regs. tit. 8, § 200.5(j) by serving a due process complaint notice upon the District. (Id. ¶ 22.) The District, through its counsel, served a letter response dated July 22. (Id. ¶ 23.) The matter was heard by Joan Alexander, an impartial hearing officer (IHO), on September 10, 11, and 12. (Id. ¶ 24.) GV and the District were represented by counsel, and District and BOCES employees testified as witnesses. (Id. ¶¶ 25-26.)

         On October 29, the IHO issued a decision. (Id. ¶ 27; Id., Attach. 1.) The IHO found that the District did not provide a free appropriate public education (FAPE) to CV because, among other things, the District “failed to properly develop, review[, ] and update [CV's behavioral intervention plan]” and “improperly used seclusion and restraints” during 2012-13. (Id., Attach. 1 at 3.)[5] However, regarding GV's Section 504 and ADA claims, the IHO found “no violation of Section 504 or the ADA” and explained:

I do not find bad faith or gross misjudgment in the [District]'s 2012-[13] behavior[al] intervention “plan”, or in its repeated use of physical restraints and seclusion. I note that I closely observed the demeanor[] of all of the witnesses during a three-day hearing, and that I've become very familiar with all of the proof in this matter.

Id., Attach. 1 at 3, 36.

         3. State Review Officer's Decision

         GV and the District sought review of the IHO's decision by a state review officer (SRO). (Compl. ¶ 30.) On February 28, 2014, the SRO issued a decision. (Id., Attach. 2.) Regarding the IHO's finding that the District did not violate Section 504 or the ADA, the SRO found:

Although [GV] alleges that the [D]istrict violated [S]ection 504 and the ADA, the New York State Education Law does not appear to provide for state-level administrative review by an SRO of IHO decisions with regard to [S]ection 504 or ADA disability discrimination claims . . . . As [GV] provides no authority for the proposition that SROs have jurisdiction over [S]ection 504 or ADA claims, and did not respond to the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.